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P a g e | 1
Judgment.
BEFORE PESHAWAR HIGH COURT,
PESHAWAR.
Judicial Department.
Writ Petition 3075-P of 2015
Mr. Arshad Khan………….….………………………………..Petitioner
Vs
Chairman National Accountability Bureau, Islamabad…Respondents
Date of hearing……………….15th December, 2016…….…………
Petitioner(s) by………………………………………………………
Respondent(s) by……………………………………………………
WAQAR AHMAD SETH, J:- Through this
single judgment we propose to decide the instant writ petition
as well as connected writ petitions bearing No. 144, 164, 690,
1897, 2280, 2281, 2369, 2651, 2736, 2833, 2889 & 2979-P of
2016, as common question of law and fact are involved therein.
2. Facts, relevant for the disposal of this writ petition are
that, respondents / NAB authorities initiated an inquiry
regarding corruption and corrupt practices related to award of
compensation / payment to affectees / IDPs of Mohmad Agency
by the officers / officials of FDMA and accordingly petitioner
was arrested on 2.4.2015, on the allegation that being Director
P a g e | 2
General FATA, Disaster Management Authority, you facilitate
the withdrawal of funds on fake and bogus record/documents
and found involved with other accused persons in corruption
and corrupt practices by embezzling public money which was
meant for compensation to affectees, affected during military
operation in Mohmand Agency and thereby failed to exercise
your authority to prevent the loss to National Exchequer
through fake/bogus record. After arrest, petitioner was
produced before Judge Accountability for physical remand,
which was obtained and on 23.4.2015, was remanded to judicial
lockup. Thereafter he invoked the jurisdiction of this Court
under Article 199; however, his plea for bail was regretted; then
approached the apex Court where too met the same fate
however, NAB authorities were directed to conclude the trial
within three months. On 13.8.2015 another ground of arrest
against him was issued on the allegations that being Director
General FATA, Disaster Management Authority, knowingly
misused your authority with malafide intention and connivance
of others prepared fake survey forms for fake / ineligible
affectees under “Housing Uniform Assistance Subsidy
Project”, in Bajour Agency and approved payment list
containing fake forms in order to embezzle public money,
P a g e | 3
thereby caused huge loss to the public exchequer; hence was
arrested and after codal formalities obtained physical remand.
3. Felt aggrieved petitioner had filed the instant writ
petition, which was heard and allowed as prayed for on
10.12.2015, but the said judgment was impugned before the
apex Court by NAB authorities, which came up for hearing on
19.5.2016 and the case was remanded to this Court for decision
afresh in accordance with law including maintainability of the
writ petition, hence the petition in hand.
Writ petition No. 144-P/2015.
Petitioner, who was posted as Divisional Accounts
Officer in Pak PWD Batkhela with effect from 16.11.2009 to
21.9.2011 was arrested by NAB authorities in inquiry
conducted in respect of NA-30 and after codal formalities sent
to judicial lockup; whereafter he moved for bail before this
Court in WP No. 3411-P of 2015 which was accepted and
allowed on 19.11.2015 and was accordingly released on bail,
but again preferred the petition in hand with the plea that
respondents / NAB authorities are bent upon to arrest him in
other so called inquiries of the same period of different
constituencies, which is illegal and unlawful.
P a g e | 4
Writ Petition No. 164-P/2016.
The petitioner of instant case is the Assistant Executive
Engineer (Acting Charge) in Pakistan Public Works
Department (Pak PWD) Batkhela Division and was arrested on
19.8.2014 on the allegation that you being SDO Pak PWD
Batkhela, approved and execute ghost schemes worth of
millions rupees by preparing and signing bogus bills/entries in
measurement book (MB) which caused colossal loss to the
public exchequer. After arrested, petitioner interrogated and
after investigation sent to judicial lockup. Petitioner submitted
petitions for bail before this Court as well as apex Court, which
were dismissed, however reference No.3 of 2015 before trial
Court is pending trial. On 7.1.2016, another warrant of arrest
against the petitioner was issued on the allegations that more
than 100 schemes were shown to be executed as per record,
wherein grave illegalities and ghost schemes were identified
during the course of investigation and you being Assistant
Engineer, passed bills amounting to millions of rupees on the
basis of fictitious measurement causing huge loss to the
government exchequer, which as per assertion of petitioner is
illegal and unlawful, hence the instant writ petition.
P a g e | 5
Writ Petition No. 2369 & 2280-P/2016.
The petitioners of these writ petitions aggrieved from the
letter No. 556-63/F&P/DC(M) dated 30.5.2016, whereby they
were directed to accompany the NAB authorities during field
visit of developmental schemes in NA-21 District
Mansehra/Torghar, which as per their assertion is illegal and
unlawful on the ground that NAB authorities have already after
inquiry have investigated the schemes i.e 181 schemes out of
567, wherein petitioners were arrested, however, after due
course of law they succeeded in obtaining bail and to this effect
reference No. 5 of 2016 has been filed against them, hence the
writ petition.
Writ Petition No.2281-P/2016.
Petitioner being District Coordination Officer /
Administrative Head, Mansehra, has supervised / executed
construction work under Prime Minister Directives, upon which
NAB started inquiry which was converted into investigation
and accordingly petitioner being Head / authority was arrested
and later on was released on bail by apex Court on 11.4.2016,
however is aggrieved from other inquiries initiated by the NAB
P a g e | 6
in the said constituencies / District, has filed the instant writ
petition.
Writ Petition No. 1897, 2651, 2736 & 2979-P of 2016.
Petitioners Muhammad Asif, Muhammad Iftikharullah
Qureshi, Abdul Wahab & Faridon, Executive Engineers,
Assistant Executive Engineer & Sub Engineer, Pak PWD,
respectively, have filed the instant writ petition with the prayer
that to declare the subsequent inquiries conducted by the NAB
authorities against them in one and same period, as illegal,
unlawful and against the settled principle of law.
Writ Petition No. 2833-P/2016.
Petitioners of the instant writ petition aggrieved from the
actions / acts of respondents / NAB authorities have filed the
instant writ petition with the prayer that the so called inquiries /
investigations which the NAB authorities are conducting, are
based on mala fide, malice as they have revived the inquiries
after six years that too; at the behest of respondent No.5 and are
repeatedly calling / harassing the petitioners, which is illegal
and unlawful.
Writ Petition No.690-P of 2016.
P a g e | 7
Petitioner of the instant writ petition is aggrieved from
the interim reference No.04/2015 and subsequent references if
any which the respondents / NAB intends to file, have filed the
instant writ petition with the averments that reference No.
01/2015 and interim reference No.04/2015 arising out of the
same facts and pertaining to the period during which petitioner
remained Secretary Worker Welfare Board (WWB) therefore,
reference No.4 / interim reference be considered part and parcel
of reference No.1 and both the references be joined together as
one reference and a single charge be framed.
Writ Petition No. 2889-P/2016.
Petitioner of the instant writ petition aggrieved from four
separate references filed against him by respondents / NAB
authorities and further authorization of fresh inquiry have filed
the instant writ petition with the averments that reference
No.03/2015, 11/2015, 03/2016 and 07/2016, arising out of the
same facts and pertaining to the period during which the
petitioner remained Divisional Accounts Officer, Malakand and
if any subsequent references which the respondents intends to
file be joined together as one reference and single charge be
framed.
P a g e | 8
4. We have heard learned counsel for the parties and
available record gone through.
5. Since, the matter has been remanded by the apex Court
for attending to the legal objections raised by the petitioner i.e
National Accountability Bureau including the maintainability of
the writ petition, learned DPG was invited to argue the case on
the point of maintainability and other legal aspects, but he was
not aware regarding legal aspects of the matter on the basis of
which the matter has been remanded, and same is the position
of learned counsel for the petitioners as they are of the view that
at the time of hearing these petitions before the apex Court none
of them was present.
6. Learned DPG, while referring to section 173 of the
Criminal Procedure Code, 1898 and then reading Chapter-XIX
dealing with the form of charges from section 221 to 240 of the
Code, stated that it’s the job of the trial Court and a writ cannot
be entertained. He also referred to 1973 PCr.LJ 457, PLD-
1965 Peshawar-65 and 2000 MLD-1504. As against this,
counsel for the petitioners contended that the trial Court is
bound by the reference so submitted by the NAB authorities
and is not empowered to change or modify the reference. They
P a g e | 9
are of the view that supplementary challan can only authorize
the trial court to go for joinder of charges.
Section-17 of the National Accountability Ordinance,
1999, sub clause (a) reads as under:-
“Notwithstanding anything contained in
any other law for the time being in force,
unless there is anything inconsistent with
the provision of this Ordinance, the
provisions of the Code of Criminal
Procedure, 1898 (Act of 1898), shall
mutatis mutandis, apply to the
proceedings under this Ordinance.”
7. Admittedly, National Accountability Bureau, Ordinance,
1999 is a special law, promulgated to eradicate corruption and
corrupt practices and hold accountable all those persons
accused of such practice. One of the main considerations for
promulgation of National Accountability Ordinance, 1999, was
to recover the amount which accused persons did not pay and
misappropriated the amount and assets. Section-3 of the
Ordinance, ibid reads, Ordinance to override the other law, ”the
provisions of this Ordinance shall have effect notwithstanding
anything contained in any other law for the time being enforce”,
which clarifies that provision of National Accountability
Ordinance, 1999 shall have effect notwithstanding anything
contained in any other law for the time being enforce and to
P a g e | 10
have overriding effect to the extent of any inconsistency and
provisions of the Ordinance, and shall prevail over the
procedure provided in Criminal Procedure Code, 1898. In this
respect reliance is placed on the case of Sardar Ahmad Sial
and others vs National Accountability Bureau reported in
2004 SCMR-265 (b) which reads as under:-
“---Ss. 3 & 17---Criminal Procedure Code
(V of 1898), Preamble---Provisions of
National Accountability Ordinance, 1999
shall have effect notwithstanding
anything contained in any other law for
the time being in force---Provisions of
National Accountability Ordinance, 1999
have overriding effect to the extent of any
inconsistency and provisions of the
Ordinance shall prevail over the
procedure provided in Criminal
Procedure Code, 1898.”
8. The Accountability Court which is define in section 5(g),
NAB Ordinance, 1999, is empowered to take cognizance of
offences under section 18 (a) which reads as under:-
“The Court shall not take cognizance of
any offence under this Ordinance except
on a reference made by the Chairman
NAB or an officer of the NAB duly
authorized by him.”
9. According to section 18-(b) a reference under the
Ordinance, 1999 shall be instituted by the National
Accountability Bureau, meaning thereby that any reference
filed by the Bureau is to be adjudicated / cognizance be taken
P a g e | 11
by the Accountability Court and not otherwise. The reference so
filed neither can be modified nor can be altered by the
Accountability Court except to frame the charge and then to
proceed in accordance with the procedure so provided,
therefore, for the purpose of joinder of charges etc the
Accountability court is tied up. Charge under the law had to be
framed by the Court on the basis of the material placed before it
and in doing so, the Court was not bound by the report
submitted under section 173 Cr.PC and the Court can alter or
change under section 227, Cr.PC if it was so warranted by the
circumstances, but all this is possible when there is a
supplementary challan under the general law. Here the question
is that when a reference is filed the Court is only competent
under the National Accountability Ordinance, 1999 to frame the
charge on the said reference and these petitions have been filed
by calling in question and interpreting the provision of section
17(d) of the NAB Ordinance, practically requiring the
prosecuting agency to submit one reference in respect of all the
charges of similar nature, without bifurcating one and the same
offence, of a particular period, tenure and cause of action and as
such the accountability court cannot do so and it’s the
constitutional jurisdiction of this Court, to do so. The larger
P a g e | 12
bench of Lahore High Court has held regarding the
maintainability and jurisdiction under Article 199 of the
Constitution as under:-
“---Ss. 5(o) (r), 9, 10 & 11---Constitution
of Pakistan (1973), Art. 199---
Constitutional petition---Maintainability--
-Willful default ---Reference---Person
who was neither sponsor nor owner of the
defaulting corporate entity; nor exercised
any dominative influence in the working
of defaulting company and his wife’s
share in the company was nominal and
Creditor Bank had not impleaded him as
defaulting party when suit for recovery of
loan in the Court of Special Judge
Banking filed, was not a person within the
terms of S. 5(o) of the National
Accountability Bureau Ordinance, 1999
nor a “willful defaulter” within the ambit
of S.5(r) of the said Ordinance---
Proceedings against such person,
therefore, were clearly without
jurisdiction and of no lawful
consequences---Reference to the extent of
such person was ordered to be quashed
by the High Court under its jurisdiction
under Art. 199 of the Constitution in
circumstances.”
10. Even otherwise interpretation of law comes within the
domain of Article 199 and in the instant case the prosecuting
agency is not doing what he is required under the law to do.
11. On merits petitioners have called in question the
applicability of section 17(d) of National Accountability
Ordinance, 1999, alleging that the repeated arrest, detention,
investigation and the references so filed are against the spirit of
P a g e | 13
said section, thus are illegal, unlawful, void and baseless. In
order to interpret said section of law i.e 17(d) it would be
imperative to read the same carefully which says:-
“Notwithstanding anything in section 234
of the Code, a person accused of more
offences than one of the same kind
committed during the space of any
number of years, from the first to the last
of such offences, may be charged with and
tried at one trial for any number of such
offences.”
Under line by us to have emphasis.
Section-234 of the Code of Criminal Procedure 1898
reads as under:-
“Three offences of same kind within one
year may be charged together. (1) When a
person is accused of more offences than
one of the same kind committed within
the space of twelve months from the first
to the last of such offences, whether in
respect of the same persons or not he
may be charged with and tied at one trial
for and number of them not exceeding
three.
(2) Offences are of the same kind
when they are punishable with the same
amount of punishment under the same
section of the Pakistan Penal Code or of
any special or local law;
12. The object and intention of the legislature is very much
clear by introducing section 17(d) in the NAB Ordinance, in
reference to section 234 of the Code, and section 3 of the NAB
Ordinance, 1999 gives the overriding effect over all other laws
P a g e | 14
including the Code and specially section 234. The bare reading
of section 17(d) would provide an emphasis that a person
accused of more offences than one of the same kind committed
during the space of any number of years, from the first to the
last of such offences may be charged with and tried at one trial
for any number of such offences. The underline portion of the
said section is relevant for the present controversy and as such
learned DPG was directed to address the Court on the same.
13. We have before us section 234 of the Code of Criminal
Procedure which requires for every distinct offence of which
any person is accused there shall be a separate charge and every
such charge shall be tried separately, except in the cases
mentioned in cases 234, 235, 236 and 239 of the Code; whereas
section 235 of the said Code requires:-
(i). If, in one series of acts so connected
together as to form the same transaction,
more offences than one are committed by
the same person, he may be charged with
and tried at one trial for every such
offence.
(2) Offence falling within two definitions. If
the acts alleged constitute an offence
falling within two or more separate
definitions of any law in force for the time
being by which offences are defined or
punished, the person accused of them
may be charged with, and tried at one
trial for, each of such offences.
(3) Acts constituting one offence, but
constituting when combined a different
P a g e | 15
offence. If several acts, of which one or
more than one would be itself or
themselves constitute an offence,
constitute when combined a different to
offence, the person accused of them may
be charged with, and tried at one trial for,
the offence constituted by such acts when
combined, and for any offence constituted
by any one, or more, of such acts.
(4) Nothing contained in this section shall
affect the Pakistan Penal Code, section 71.
14. We have before us judgments reported in PLD 2014
Balochistan-33 titled Gen. ® Syed Pervez Musharraf Vs the
Statez, in reference to repeated arrests etc and the distinct
offences defined and explained, the perusal of the same would
gives the idea in this respect which reads as follow:-
“---Ss. 167, 173 & 497---Bail, grant of---
More one case---Investigation---
Procedure---Different criminal cases were
registered against accused in different
provinces and after his arrest in one case,
he applied for bail in other case registered
in other province---Validity---Accused,
under S. 167, Cr.PC, required in more
than one criminal cases, when arrested
was deemed to have been arrested in all
cases, registered against him---No legal
bar existed for interrogating accused with
regard to allegation against him in
another case; it was rather desirable that
when a person required or accused in
more than one case or when more than
one FIR were registered against him was
arrested and remanded to physical
custody then he should be interrogated
about allegations against him in all cases--
-Different cases against accused could be
investigated under S. 167 Cr.PC by
keeping him at one place---Once
investigation was completed and
challan/police report submitted under
section 173, Cr.PC, physical custody of
accused had to be forwarded to the
P a g e | 16
jurisdiction of concerned court---Once
such custody was acquired by Court
concerned it could proceed with the trial
and pass all ancillary orders including
grant of bail---Concept of considering
grant of bail to accused after his arrest by
a Court which did not have his physical
custody was alien to law---Accused,
though arrested in case in question, was
not produced in custody /brought before
Trial Court or within the territorial
jurisdiction of trial Court, therefore,
Trial Court had rightly rejected
application as being premature---Accused
being not in custody within the
jurisdiction of High Court, therefore,
application was not maintainable---Bail
was refused in circumstances.
Likewise in the case of Mst. Razia Pervez and another
Vs Senior Superintendent of Police, reported in 1992,
PCr.L.J-131, it has been held as under:-
(a) Constitution of Pakistan (1973) ---
----Art. 199---Criminal Procedure Code
(V of 1898), Ss.54 & 167---Accused was
kept in continuous detention for more
than fifteen days in police lock-up as a
result of his repeated arrest by Station
House Officer in more than one cases
registered at the same police station and
his successive physical remands given by
the Magistrate to police--- Such conduct
of S.H.O. and Magistrate was
unwarranted and not in accordance with
law--- Magistrate and S.H.O. both,
however, tendered unqualified apology to
the High Court with the promise to be
careful in future--- State Counsel also
gave assurance that police would not
apply for further physical remand of the
accused in cases already registered
against him at the same police station and
that he would immediately be sent to
judicial lock-up--- Proceedings’ against
the Magistrate and the S.H.O. were
consequently dropped and writ petition
was disposed of accordingly.
P a g e | 17
(b) Criminal Procedure Code (V of 1898)---
----Ss. 54 & 167---Law does not authorize
police to arrest an accused required in
more than one cases in one case and to
wait for his arrest in the other case till the
expiry of the period of remand under
S.167, Cr.P.C. or till he is released on bail
in the first case---Such commonly
committed mischief not only defeats the
object of S.167, Cr.P.C. of limiting the
period of physical detention of an accused
person to fifteen days, but is obviously a
joke with the powers of the Magistrate in
the matters of remand and custody of an
accused person.
(c) Criminal Procedure Code (V of 1898)---
----Ss. 54 & 167---Scope and object of
Ss.54 & 167, Cr.P.C.---Person required in
more than one
cases---Arrest---Procedure---Guidelines.
No doubt, the Police Officer can arrest a
person where a reasonable suspicion
exists of his having been concerned in any
cognizable offence but power given to the
Police Officer under section 54, Cr.P.C.
being an encroachment on the liberty of a
citizen is not unlimited. It is subject to the
condition stated therein. An arrest
purporting to be under this section would
be illegal unless the circumstances
specified in the various clauses of the
section exist. This section does not give
free license to a Police Officer to arrest
anybody he may like. In order to act
under this section, there must be a
reasonable suspicion of the person to be
arrested having been concerned in a
cognizable offence. An arrest of a citizen
in a reckless disregard of the conditions
imposed in this section would make the
arrest and detention of the subject illegal
and the Police Officer arresting or
detaining the subject would be exposed to
prosecution under the Pakistan Penal
Code and also for departmental action
under the relevant rules. Similarly,
section 167, Cr.P.C. does not visualize
successive and repeated arrests of a
person required in more than one cases.
An accused required in more than one
criminal cases when arrested will be
P a g e | 18
deemed to have been arrested in all the
cases registered against him. There is no
legal bar for interrogating an accused
person with regard to the allegations
against him in another case. It is rather
desirable that when a person required or
accused in more than one cases or where
more than one F.I.Rs. are registered
against him is arrested and remanded to
physical custody, then he should be
interrogated about the allegations against
him in all the cases. Instead of acting
strictly in accordance with law, the police
is following the illegal practice of showing
the arrest of the person in one case and on
the expiry of remand it again arrests him
in another case. It is commonly known
that in selected case, police would arrest
the accused on his release on bail in the
first case. It is nowhere stated in the
Criminal Procedure Code and Police
Rules that a person required in more than
one case when arrested will be deemed to
have been arrested in one case and he
cannot be arrested simultaneously in
more than one case. Section 167, Cr.P.C.
simply says that whenever a person is
arrested or detained in custody, the
Magistrate may authorize his detention in
such custody for a term not exceeding
fifteen days in the whole. The section does
not talk of ‘case’ it talks of custody only.
The longest period for which an accused
can be ordered to be detained
continuously in police custody by one or
more such orders, is only fifteen days. So,
the detention of the accused person
required in more than one cases already
registered against him, for more than
fifteen days would be illegal. It would be
quite in accordance with law that when a
person required in more than one
criminal cases of the same police station is
arrested in one case, he shall be deemed
to have been arrested in all the cases.
After continuous physical custody of the
accused with the police, the Magistrate
will not be justified in granting his
physical remand in another case and
similarly after the accused is released on
bail in one case, he will not be arrested by
the police in the other case. It is desirable
that the Police Officer, while applying for
the physical remand of an accused person
P a g e | 19
should certify that he is not required in
any other case and if there are more than
one cases against him, then the
S.H.O./Investigating officer will state this
fact in the remand application. Similarly
while granting physical remand, the
Magistrate shall inquire from the
S.H.O./Investigating Officer as to whether
the accused is required in other cases or
whether any other case is registered
against him at the police station. If the
accused has remained with police
pursuance to the remand granted under
section 167, Cr.P.C. then the Magistrate
will be justified in refusing further
physical remand of the accused in another
case. It goes without saying that whenever
the police indulges in these tactics of
arresting the accused successively in
different case, it is not taken in good taste
by the public and the Courts.
In the case of Ramesh M. Udeshi Vs The State,
reported in 2002 PCr.L.J-1712, the learned Bench of
Karachi High Court, in reference to NAB Ordinance, 1999
has held as under:-
----Ss. 9 & 10---Criminal Procedure Code
(V of 1898), Ss.233. 234, 235, 403 & 407---
Constitution of Pakistan (1973), Art.
406---Corruption and corrupt practices---
Accused, as Secretary Provincial Land
Utilization Department had allegedly
submitted a joint summary to the
Provincial Chief Minister benefiting 26
persons who were leased out lands in
various Dehs--- Distinct offence---
Concept--- Multiplicity of trials on same
set of facts--- Validity--- Once the accused
was tried and convicted on the basis of
joint summary from which benefits
flowed m 26 persons and on account of
single direction to the Competent
Authority, subsequent prosecution and
trial on the same set of facts was barred
under the law-- Such bar, however, was
confined to the accused only who already
stood tried and convicted in the earlier
reference, which had nothing to do with
P a g e | 20
the present trial of the beneficiaries who
had not been earlier convicted and tried
for the commission of corruption and
corrupt practices-- Principles--- Maxim
"Nemo debet bis vexari pro una et eadem
causa"--Scope and applicability.
Perusal of section 233, Cr.P.C. shows
that the purpose of the enactment is to
prevent embarrassment/difficulties to the
accused in defending himself in respect of
the charge or charges brought against
him. However, at the same time
Legislature has recognized that when in a
given circumstance no embarrassment
would be caused to an accused in
defending himself, he should be tried for
more than one offence in same trial in
order to avoid the multiplicity of trials.
The circumstances are mentioned in
sections 222(2), 234, 235, 236 and 239,
Cr.P.C. while applying the principles laid
down in section 233, that for every
distinct offence of which any person is
accused there shall be a separate charge
and every charge shall be tried
separately, it should always be kept in
view that the general rule laid down in
section 233 was enacted for the benefit of
the accused persons and not for that of
the prosecution. It is also to be borne in
mind that the accused should not be
exposed to the risk of conflicting
decisions.
Sections 233 to 240, Cr.P.C. deal with
joinder of charges and they must be read
together and not in isolation. When the
exceptions contained in sections 234, 235,
236 and 239 are read with the general
rule contained in section 233, Cr.P.C., it
appears that the object of exception is to
avoid the necessity of same witnesses
giving the same evidence two or three
times in different trials and to join in one
trial those offences with regard to which
the evidence would overlap.
A perusal of the illustration of section
233, Cr.P.C. shows that the expression
"distinct offences" connotes the offences
which have no connexion with each other.
The illustrations of "distinct offences"
may be categorized as follows:--
(a) Offences falling under different sections of the
same penal enactment.
(b) Offences falling under different penal
enactments.
P a g e | 21
(c) Offences committed on different occasions even
though they may fall under the same section.
(d) Offences committed against different persons.
(e) Offences committed by different persons
individually though they may be of the same
kind, as where three persons were charged with
being drunk.
(f) Allegations of misappropriation against accused
not in respect of any single amount but relating
to different specific amounts received by him on
different dates from different persons.
In the following cases, the offences of the same
kind committed on one occasion were to be taken
as one offence and not distinct offences:--
(1) Theft of several articles from one person or more
at the same time.
(2) The receiving of stolen property belonging to
different owners or the gangs of different theft
but received at the same time.
(3) The making of any number of false allegations in
one statement.
(4) The misappropriation of several amounts of
money not proved to be committed on different
occasions.
(5) A single use of several forged documents as
genuine in a Court of law.
(6) Receiving of bribe partly on one day and partly
on another.
(7) Attempt to murder two persons by firing a single
shot at them.
Now coming to section 235, Cr.P.C.
under subsection (1) the accused may be
charged with and tried at one trial for
every offence which has been committed
in one series of acts so connected together
as to form the same transaction. The
expression "same transaction" has not
been defined in the Code. A series of act
can be regarded as same transaction
when they are connected together in some
way in proximity of time, unity of place,
unity of community of purpose or design
and continuity of action. To these factors
two other considerations may be added,
i.e. whether several acts in series are
related as cause and effect to each other
and whether they are related to each
other as principal and subsidiary acts.
The real and substantial test in
determining whether several offences are
P a g e | 22
so connected together as to form one
transaction depends upon whether they
are related together in point of purpose or
as cause and effect or as principal and
subsidiary acts so as to constitute one
continuous act.
Section 235 provides that if in one series
of acts so connected together as to form
the same transaction, more offences than
one are committed by the same person, he
may be charged with, and tried at one
trial for every such offence.
The expression "same transaction" is not
defined in the Code. The word
"transaction" is by its very nature is
incapable of exact definition. The real and
substantial test for determining whether
several offences are so connected together
as to form one transaction is whether the
offences are so related as principal and
subsidiary acts, as to constitute one
continuous action. It is, therefore, clear
that the question whether distinct
offences form part of the same
transaction is one the answer to which
must depend on the facts of each
particular case.
The test employed by the Courts for
determining whether separate offences
committed in course of the same
transaction is whether they are connected
together by (i) proximity of time and
place; (ii) community of purpose and
design and (iii) continuity of action. The
two last are essential elements while the
first is alone insufficient for a joint trial.
Where two or more persons, being
animated by common purpose, do certain
acts constituting different, in the sense of
not being the same offences, and there is
continuity in their action, the various acts
done by them in pursuance of that
particular end in view, even though some
of them may be merely accessory thereto,
i.e. to the end in view, shall be regarded as
forming one single transaction.
In the present cases, the point to be
considered is whether the accused could
be tried jointly in one trial for all the acts
resulting in extending benefit to 26
persons, therefore, relevant provisions
contained in section 239, Cr.P.C. need not
be considered.
The principles contained in section 403,
Cr. P.C. and Article 13 of the
Constitution, are based on maxim "Nemo
P a g e | 23
debet bis vexari pro una et eadem causa".
It is a rule of law that a man shall not be
twice vexed for one and the same cause.
The maxim "nemo debt bis vexari pro
una et eadem causa"; expresses a great
fundamental rule of criminal law, which
forbids that a man should be put in
jeopardy twice for one and the same
offence. It is the foundation of the special
pleas of autrefois acquit and autrefois
convict. When a criminal charge has been
once adjudicated upon by a Court of
competent jurisdiction, that adjudication
is final, whether it takes the form of an
acquittal or a conviction, and it may be
pleaded in bar of a subsequent
prosecution for the same offence, whether
charged with or without matters of mere'
aggravation, and whether such matters
relate to the intent with which the offence
was committed or to the consequences of
the offence. Provided that the
adjudication be by a Court of competent
jurisdiction. It is immaterial whether it be
upon a summary proceeding before
justices or upon a trial before a jury.
Accordingly, a man, who has been
indicted for an offence and acquitted,
may not be indicted again for the same
offence, provided that the first indictment
were such that he could have been
lawfully convicted upon it by proof of the
facts alleged in the second indictment;
and if he be thus, indicted again, his plea
of autrefois acquit is a good bar to the
indictment. The true test by which to
decide whether a plea of autrefois acquit
is a sufficient bar in any particular case
is, whether the evidence necessary to
support the second indictment would
have been sufficient to procure a legal
conviction upon the first. Thus an
acquittal upon an indictment for the
murder may be pleaded to an indictment
for the manslaughter of the same person,
and an acquittal upon an indictment for
burglary and larceny to an indictment for
the larceny of the same goods; for in
either of these cases the prisoner might
have been convicted, on the first
indictment, of the offence charged in the
second. But an acquittal on indictment for
sodomy is no bar to a subsequent
indictment for gross indecency with a
male person, of which latter offence the
prisoner could not have been convicted on
the first indictment.
Similarly, the plea of autrefois convict
operates to bar a second indictment after
the prisoner has been prosecuted to
P a g e | 24
conviction of what is substantially the
same offence. Nemo debet bis punire pro
uno delicto; and it is an established
principle that out of the same state of
facts a series of prosecutions against a
prisoner is not to be allowed; for instance,
upon this ground a conviction for
obtaining credit for goods by false
pretences bars a further indictment for
larceny of the same goods. The pleas of
autrefois convict and autrefois acquit,
however, apply "only where there has
been a former judicial decision on the
same accusation in substance"; and
therefore, where, after a summary
conviction for an assault, the victim of the
assault died, it was held that an
indictment for manslaughter still lay
against his assailant.
The expression "distinct offence" used in
section 233 has no co-relation with the
expression "same offence" used in section
403, and further is not required to be
read with the expression, "on the same
facts or any other offence" used in
subsection (1) of section 403, Cr. P. C.
The expression "distinct offence" has
been clarified by the Legislature in the
illustration to section 233 to the effect
that, "A" is accused of a theft on one
occasion, and of causing grievous hurt on
another occasion. A must be separately
charged, and separately tried for the theft
and causing grievous hurt". The
expression "distinct offence" used in
section 233 is to be read with the
provisions contained in subsection (2) of
section 403, which provides that person
acquitted or convicted of any offence may
be afterwards tried for any distinct
offence for which a separate charge might
have been made against him on the
former trial under section 235, subsection
(1).
The provisions contained in section 233,
that separate charges for "distinct
offences" shall be framed and every
charge shall be tried separately is for the
protection of the accused persons so that
he is not confused in defending himself
and no harassment or prejudice is caused
to him.
This general rule is subject to the
exceptions mentioned in sections 234, 235,
236 and 239, Cr.P.C.
The provisions contained in section 233
are not to be interpreted or applied in a
manner which gives leverage to the
P a g e | 25
prosecution and has the effect of
depriving an accused person whereby he
is protected from jeopardy of double
prosecution, and from facing the trial
again and again, for which he could be
prosecuted at one trial only.
It is bounden duty of the Courts to see
that an accused person is saved from the
agony of multiplicity of proceedings and
scourage of repeated prosecutions and
facing the same witnesses and the same
prosecution material time and again.
The expression "offences of same kind"
used in section 234, Cr.P.C. is again
entirely, different from the expression
same offence or for any other offence, on
same facts used in section 403, Cr.P.C.
The expression offences of same kind has
been defined in section 234 itself and,
therefore, no interpretation is required by
us. The purpose of section 234, Cr.P.C. is
also to minimize the cause of harassment
or confusion to the accused. Again it is
not for the benefit to the prosecution but
for the benefit of accused so that the
prosecution does not combine large
number of offences allegedly committed
by an accused person covered by unduly
long period and further facilitate the
Court to decide the case without
confusion by confounding of the facts.
The bar contained in section 234 and in
the general rule for separate trial
contained in section 233 has been relaxed
in wider terms under section 235, Cr.P.C.
In this section a provision has been made
for joint trial if an accused has committed
more offences than one and the offences
have been committed in one series of act
so connected together as to form the same
transaction. Under the provisions
contained in section 235, Cr.P.C., there is
no limitation as to number of the cases
and if the conditions enumerated in
section 235 are fulfilled then any number
of charges can be tried jointly at one trial
if they are committed by the same person.
The expression "same offence" used in
section 403, Cr.P.C. means same act or
omission made punishable under the
same provision of law and denotes the
commission of offence in the same
transaction. In terms of section 403(1),
Cr.P.C. a person once tried by Court of
competent jurisdiction for the offence and
convicted or acquitted of such offence
shall not be liable to be tried again for the
same offence. The bar contained in
section 403 for subsequent trial is not
P a g e | 26
confined merely to the same offence but
for act, other offence as well on the same
facts for which a different charge from
the one made against an accused could be
framed under section 236 or an accused
could be convicted under section 237,
Cr.P.C.
In cases of acquittal, where section 403,
does not apply in terms the principle
embodied in the section may be properly
invoked in order to meet ends of justice.
There is no reason for not extending the
principle to an accused who has been
convicted in earlier trial and has been put
again to subsequent trial on identical
evidence and in regard to identical
charges. The reason being that, the
harassment caused to an accused by
repeated convictions for same series of
acts in same transaction and on identical
evidence and identical charges is much
more enormous than harassment caused
to an accused who after facing the
subsequent trial is bound to be acquitted.
However, subject to exceptions a person
once tried and convicted or acquitted
cannot be subsequently tried not merely
for the same offence but also for any
other offence based on the same facts.
An act committed by an accused, which
is in consequence or pursuance of or is
secondary to a principal act shall be
deemed to be a part and parcel of the
main offence and the principal as well as
subsidiary act or omission shall jointly be
treated as same offence and that out of
the same set of facts in same transaction,
a series of prosecution against an accused
convicted or acquitted in earlier
proceedings, is not to be allowed.
The accused/applicant was already tried
and convicted for the commission of
offence and subsequently on the basis of
observations made by Accountability
Court accused/applicant could not be
tried again for the same offence or for the
offence on the same facts.
The judicial officers are required to
maintain the very high quality of
impartiality and have to avoid everything
meticulously, which may lead to the
inference or impression that the Judge
has transgressed his limits and has
entered into the field which is reserved
for the prosecutors and the defence.
Court should also try to give more
impression of an impartial arbiter having
P a g e | 27
no inclination to be proprosecution or
pro-defence. The credibility of judiciary
lies in complete impartiality, total
transparency, adhering to the established
principles of dispensation of justice
without fear and favour, without giving
any impression of inclination towards
either of the parties.
Once the accused was tried and convicted
on the basis of joint summary floated by
him from which benefits flowed to 26
persons and on account of single direction
the subsequent prosecution and trial on
the same set of facts is barred under the
law. Such bar is confined to the accused
only who already stands tried and
convicted in the earlier references, which
have nothing to do with the prosecution
and trial of the beneficiaries who have not
been earlier convicted and tried for the
commission of corruption and corrupt
practices.
In the case of Badar Alam Bacjiani vs the State
through Chairman NAB, reported in 2010 PCr.L.J, it has
been held that:-
“---Ss. 9(a)(iv)(v)(vi) & 17 (d)---Criminal
Procedure code (V of 1898), S. 403---
Constitution of Pakistan (1973), Arts. 13
& 199---Constitutional petition---
Quashing of reference---Double jeopardy-
--Joint trial---Once reference was filed
against accused for acquiring assets
beyond known source of his income and
in that reference he was convicted and
sentenced by Trial Court---Later on two
more reference were filed against accused
which included the allegations already
contained in earlier reference---Accused
contended that it was a case of double
jeopardy as he had already been tried by
the Court on the charges---Validity---
Where number of offences had arise out
of one and the same transaction and same
set of facts, the same should be tried
jointly as there was commonality of
purpose and, therefore, could become a
cause for separate charge in a separate
P a g e | 28
reference which would be violative of
section 403 Cr.PC and Art. 13 of the
Constitution---NAB had contended that
fraud was result of misuse of authority in
former reference against accused and
charge in subsequent references also
included commission of fraud by hint---
Accused having been tried on such charge
and convicted too; therefore, no separate
reference in respect of such charge could
justifiably be filed and accused could not
be charged under the same---High Court
quashed subsequent references filed by
NAB against accused---petition was
allowed in circumstances.
15. The Hon’ble apex Court of the country has defined same
offence for the purpose of criminal procedure court as well as
NAB Ordinance, 1999, in its reported judgment titled Ch.
Tanveer Khan vs Chairman NAB and others, PLD 2002,
Supreme Court-587 (a) wherein it has been held as follow:-
“---S. 403. 236 & 237---Words “same
offence” as used in S. 403(i), Cr.PC, ---
Significance---Persons once convicted or
acquitted not to be tried for the same
offence---Law gives, in order to attract
the provision of S. 403 Cr.PC have laid
stress on the words “same offence” for the
purpose of debarring second trial of an
accused person, who has been once
convicted acquitted from an offence
charged against him---Apart from the
offence I which the accused may have
already been tried and convicted or
acquitted at the previous trial the
protection contained in subsection (1) of
S. 403 Cr.PC extends to an offence for
which a charge different from the one
made against tint accused at the previous
trial might have been made on the same
facts under S. 236 Cr.PC and also in
respect of an offence for which he rightly
have been convicted at the previous trial
under S. 237, Cr.PC but the protection
P a g e | 29
clearly does not extend to those facts not
at all alleged at the previous trial.
Likewise the apex court of the country in the case of
State through Deputy Prosecutor General vs Ramesh M.
Udeshi, Ex-Secretary Board of Revenue, Sindh, reported in
PLD 2003, Supreme Court-891 in reference to Article 13 of
the Constitution has held which reads as under:-
----Ss. 9 & 10---Criminal Procedure Code
(V of 1898), Ss.233 & 235--Corruption
and corrupt practices---Trial of charges
in more than one offences---Different
pieces of land were given to different
persons on lease for a period of 30 years
for Poultry Farming in various Dehs by
the Government---Lessees of such land
moved separate applications to the Chief
Minister of the Province for conversion of
their poultry farming leases into
industrial/commercial and residential
leases for 99 years in relaxation of the
existing policy---Chief Minister sent the
said applications to the Secretary,
Provincial Board of Revenue for
favourable action who prepared a
summary containing recommendations
for conversion of the leases in question
under S.10(1) of the Colonization of
Government Lands (Sindh) Act, 1912,
relaxation of existing Policy/Rules and
also recommended for reduction in the
prescribed lease money of Rs.50,000 to
Rs.25,000 per acre---Said summary was
approved by the Chief Minister and in
consequence thereto, the conversion of 26
leases mentioned in the summary was
allowed to be made---Reference under
Ss.18(g) & 24(b) of the National
Accountability Ordinance, 1999 were
filed against both the Chief Minister and
the Secretary Board of Revenue for
causing huge monetary loss to the State
by corruption and corrupt practices and
provided illegal benefit to the
beneficiaries/lessees and committed
offence/offences punishable under S.10,
National Accountability Ordinance, 1999
as holder of the public office---High
Court, found that since a proposal for
grant of 26 leases of Government land to
P a g e | 30
different persons was approved through
the joint summary, therefore, it would
constitute a single transaction for the
purpose of a joint trial of all the accused
and separate trial in each reference would
not be legal---Validity---If same kind of
offences were committed in separate
transactions, the joinder of the charges in
such cases would be in contravention of
law but if the similar nature of offences
were committed in the same transaction a
joint charge would be framed---
Principles.
If same kind of offences are committed in
separate transactions, the joinder of the
charges in such cases would be in
contravention of law but if the similar
nature of offences are committed in the
same transaction a joint charge would be
framed. It is provided in section 233,
Cr.P.C. that in case of distinct offences,
separate charge should be framed and
each charge should be tried separately
except in the cases mentioned therein
whereas under section 235, Cr.P.C. all the
offences which are committed in the same
transaction should be charged together.
Series of acts connected together and
forming, part of same transaction would
constitute a single transaction while the
separate transactions would consist upon
independent facts and constitute separate
offences and if more than one offender
committed the same offence in the same
transaction all would be charged together
at the joint trial. The general law is that if
several persons committed the same
nature of offence relating to the same
transaction, they should be tried jointly
but to ascertain the question as to
whether a case should be tried jointly or
not, the Court must look into the nature
of accusation set forth in the charge and if
the accusation is that several persons
committed the same offence in the course
of same transaction, it would be the case
of joint trial. The continuity of purpose or
design or continuity of action with
different acts, can be regarded as part of
the same transaction and obviously the
various acts may form one series and if
several acts are responsible for producing
particular result, the same may also
constitute one series but if there is no
identity or commonality of purpose, and
separate offences of the same kind were
committed, it would not form part of the
same transaction for the purpose of joint
trial, The acts of two sets of accused with
commonality of purpose if are so
P a g e | 31
intimately connected with each other that
two acts necessarily are the part and
parcel of same transaction, all the
offenders in such a case should be tried
jointly. The commonality of the purpose
and design and continuity of an action are
sine qua non to treat the series of acts as
one and same transaction and thus if
more than one person committed same
offence in the course, of same transaction
they would be charged together and tried
jointly. In the present case 26 leases were
approved through a joint summary and
all the beneficiaries would be responsible
of committing the same offence arising
out of the same transaction and
notwithstanding the individual
responsibility of all the beneficiaries, the
separate trial of the accused in each
reference by splitting up one transaction
into number of transactions would not be
legal in the light of rule that no one
should be vexed twice for one and the
same cause.
If a person is charged for committing
several offences of similar nature in the
same transaction, the joint charge shall be
framed and if several persons committed
same offence in the same transaction they
should be tried jointly, but this rule is
subject to the provisions of section 233,
Cr.P.C. wherein it is provided that for
every distinct offence there shall be
separate charge and the same shall be
tried separately except in the cases in
which the Code provides otherwise. The
concept of joint trial is based on solitary
principle that no prejudice should be
caused to the accused in framing of
separate charge and holding separate
trial unless it is essentially required under
the law. The provision of section 233,
Cr.P.C. being an enabling provision
would not make it incumbent on the
Court to frame separate charge and hold
separate trial on the basis of same facts by
splitting up one transaction into number
of transactions in terms of the rule laid
down in the said provision that for each
distinct offence separate charge should be
framed. The present case would be
governed by the provision of section 235,
Cr.P.C. wherein it, is provided that in the
cases in which more than one offence is
committed in the same transaction by
more than one person all should be tried
jointly. Thus the mere fact that 26
different leases in the name of different
persons were approved, would not be
sufficient to hold that there was no
commonality of purpose or that it was
P a g e | 32
more than one transaction forming part
of the joint summary; therefore, there can
be no exception to the view that the
framing of the separate charge against the
respondent in each reference on the basis
of same fact would be violative of the
principle of law embodied in section 403,
Cr.P.C. and Article 13 of the Constitution
of Islamic Republic of Pakistan, 1973.
16. While going through the above referred judgments
regarding the “same transaction” and “distinct charge”, we are
left with section 17(d), which exclude section 234 of the Code
of Criminal Procedure and leaves only “from the first to the last
of such offence” may be charged with and tried at one trial for
any number of such offences. The accused as defined in
section-5 (a) of the Ordinance, clause-a is reproduced as under:-
“Accused” shall include a person in
respect of whom there are reasonable
grounds to believe that he is or has been
involved in the commission of any offence
trial under this Ordinance or is subject of
an investigation or inquiry by the
National Accountability Bureau or any
other agency authorized by the National
Accountability Bureau in this regard
under this Ordinance.”
17. The offences are defined in section-9 with the heading
corruption and corrupt practices, clause (i) of section-9-a to
clause-(xii) defines the nature of offences. These sections are
applicable to a holder of a public office, or any other person is
said to commit or to have committed the offence of corruption
P a g e | 33
and corrupt practices. When these definitions of offences are
read in juxtaposition with section-17(d) the intention of the
legislature stand clear by using the words” from the first to the
last of such offence”, as the same pertains to the period of
posting / tenure, in the office.
18. The bare reading of section 17(d) of the NAB Ordinance,
for all intents and purposes has the overriding effect inspite of
the fact that criminal procedure code is mutatis mutandis
applicable. The wordings of the said section and specially
“from the first to the last of such offences”, clearly denotes that
all the offences of similar nature during the entire tenure of the
holders of the public office and his jurisdiction, in a single
reference and the same cannot be bifurcated to the convenience
of the prosecution and inconvenience of the accused. It is a well
settled principle of law that if in one series of act so connected
together as to form the same transaction , more offence than one
are committed by the same person, he may be charged with and
tried at one trial for each such offence.
19. The maxim of equity says that Nemo debet bis puniri
pro uno delicto establishes that the out of the same state of
facts a serious of prosecutions against a prisoner is not to be
P a g e | 34
allowed; hence, the prosecution / investigating agency could not
be allowed to re-arrest time and again the accused person,
repeatedly on the similar nature of charges, during the same
tenure and of same jurisdiction/nature. The respondents in such
a situation are bound to join all the references already pending
against the said holder of public office or otherwise. Person
once tried and convicted or acquitted cannot be subsequently
tried not merely for the same offence but also for any other
offence based on the same facts. Yes, if a person is tried in one
offence i.e corruption and corrupt practices he can be tried in
another reference of different offence i.e accumulation of
wealth. The section-9 of Ordinance itself bifurcates the offences
in clause-i to xii. The perusal of the entire NAB Ordinance
would reflects that sufficient time has been granted by the
legislature to investigate the entire tenure of the holder of the
public office or any other person involved in the matter and as
such after investigating, one reference is permitted on the one
and same cause of action and second or more references with
mere difference of dates, amount involved and witnesses
involved would not constitute a separate offence, neither a
separate reference, through a subsequent investigation could be
permitted in view of words used in the section 17 (d), specially
P a g e | 35
the underline portion. A person accused of more offences than
one of same kind committed during his entire tenure while
holding the public office, from first to last of such offences, be
liable to be tried at one trial, otherwise, trial would be in
violation of mandatory provision of section 17(d) of the NAB
Ordinance.
20. Trial to be conducted with utmost fair-anything causing
embarrassment to accused should be avoided. Reliance is
placed on PLD 1964 SC-120. National Accountability
Ordinance, 1999 was promulgated in order to provide effective
measures for detention, investigation, prosecution and speedy
disposal of cases involving corruption, corrupt practices, misuse
and abuse of power or authority, misappropriation of property,
taking kick backs, commission and for matters connected and
ancillary incidental thereto. Object of NAB Ordinance, 1999, in
its preamble is to provide expeditious trial of schedule offences
within the shortest possible time; this has been observed by the
Hon’ble apex Court in the report judgment PLD-2008 SC-645
(a).
21. In addition to above, NAB Ordinance, 1999 is a special
law and used of same in oppressive manner must be tested on
P a g e | 36
the touchstone of fundamental right of a person as guaranteed
under the Constitution. Misuse of law cannot be overlooked or
ignored by Courts being custodian of the Constitution. Courts
are under legal duty to defend, preserve and enforce rights of
people and their constitutional guarantees. Notwithstanding
protection provided to NAB authorities under the law in respect
of their functions, use of power by them in an unbridled manner
for prosecution of innocent persons in disregard to their
constitutional guarantees, rights, liabilities and duties must not
be allowed and courts must prevent such oppressive use of
penal law through judicial determination. Reliance is placed on
PLD-2001 SC-607.
22. In view of above, it is worthwhile to refer to Articles-4, 8
& 13 of the Islamic Republic of Pakistan, 1973, which
produced as under:-
Article-4. Right of individuals to be dealt with in
accordance with law, etc. (1). To enjoy the
protection of law and to be treated in
accordance with law is the inalienable
right to every citizen, wherever he may
be, and of every other person for the time
being within Pakistan.
(2). In particular---
(a) no action detrimental to the life, liberty,
body, reputation or property of any
person shall be taken except in
accordance with law;
P a g e | 37
(b) no person shall be prevented from or
be hindered in doing that which is not
prohibited by law; and
(c) no person shall be compelled to do that
which the law does not required to do.
Article.8. Laws inconsistent with or in
derogation of fundamental rights to be
void.—(1) Any law, or any custom or
usage having the force of law, in so far as
it is inconsistent with the rights conferred
by this Chapter, shall, to the extent of
such inconsistency, be void.
(2) The state shall not make any law which
takes away or abridges the rights so
conferred and any law made in
contravention of this clause shall, to the
extent of such contravention, be void.
(3)……
Article-13. Protection against double
punishment and self-incrimination,” No
person--
(a) Shall be prosecuted or punished for
the same offence more than once; or
(b) Shall, when accused of an offence, be
compelled to be a witness against
himself.
23. Record reveals that second warrant and more than one
reference impugned in all the connected writ petitions has been
initiated by the Provincial Government under the NAB
Ordinance, 1999, which being a complete code, not only
provides a method and mechanism for proceedings against the
delinquent officers, but also provides the forum for redressal. It
is not disputed that in view of Article-13 of the Constitution,
the petitioner shall not be prosecuted or punished for the same
offence more than once. Section-17(d), of the National
Accountability Bureau Ordinance, 1999, as discussed above
P a g e | 38
also provides that notwithstanding anything contained in
section-234 of the Criminal Procedure Code, a person accused
of more offences then one of the same kind committed during
the space of any number of years, from the first to the last of
such offences, may be charged with and tried at one trial for
any number of such offences, especially in view of Article-
10(A) of the constitution, even the petitioner shall be entitled to
a fair trial and due process. It is also essential to endorse that
article-8 of the constitution provides that any law, or any
custom or usage having the force of law, in so far as it is
inconsistent with the rights given under this article shall, to the
extent of such inconsistency, would be treated as void. Even the
state shall not make any law which takes away or abridges the
rights so conferred and any law made in contravention of this
cause shall, to the extent of such contravention, would be
considered as void. Article-4 of the constitution also guard the
rights of a citizen of this country to enjoy the protection of law
and to be treated in accordance with law or the inalienable
rights of every citizen, wherever he may be, and of every other
person for the time being within Pakistan, then how a second
warrant, investigation or for that matter more than one reference
having the same nature of charge can be issued against the
P a g e | 39
petitioner in contrary, when it is not admissible under the law.
If the contention of the learned NAB counsel that there is no
legal bar to issue a second warrant or to file another reference
against the petitioners is allowed, then there would be no end to
the filing of references.
24. We while allowing these writ petitions, it is held that re-
arrest of any holder of public office or for that matter any other
person on the same charges for the same period, which he was
holding the office is illegal, unlawful and against the mandate
of section 17(d). The filing of more than one reference on the
same allegations, relating to same period / tenure is also against
the mandate of section-17(d) of the National AB Ordinance,
1999, however the pending references against one
person/accused in different Accountability Courts are to be
clubbed together for the purpose of consolidation and alter of
charge for which the trial Court is competent to proceed with,
by treating more than one reference as supplementary
references.
Announced.
15th December, 2016
Tariq Jan J U D G E
J U D G E
P a g e | 40
Judgment.
BEFORE PESHAWAR HIGH COURT,
PESHAWAR.
Judicial Department.
Writ Petition 2833-P of 2016.
Muhammad Jan & others………………………….………..Petitioners
Vs
Chairman National Accountability Bureau & others….. Respondents
Date of hearing……………….15th December, 2016…….…………
Petitioner(s) by………………………………………………………
Respondent(s) by……………………………………………………
WAQAR AHMAD SETH, J:- Vide our detailed
reasons recorded in connected writ petition bearing No. 3075-P
of 2015, titled Arshad Khan vs Chairman National
Accountability Bureau & others, this writ petition is allowed.
Announced.
15th December, 2016
Tariq Jan J U D G E
J U D G E